Albers v. Fitschen
| Decision Date | 01 July 1966 |
| Docket Number | No. 39998,39998 |
| Citation | 274 Minn. 375,143 N.W.2d 841 |
| Parties | Henry ALBERS, Respondent, v. Louis FITSCHEN, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
Minn.St. 82.16, which provides that no person may maintain an action for collection of a real estate commission without alleging and proving that he was 'a duly licensed real estate broker or salesman at the time the alleged cause of action arose,' was enacted to protect the public from unqualified or unreliable real estate brokers; the statute is remedial and in the nature of a statute of limitations in that it acts upon the remedy and not upon the right of action. The defense to a complaint which omits the statutory condition precedent may be waived by answering to the merits and going to trial without in any manner asserting the defect.
Daniel F. Foley, Wabasha (on appeal only), for appellant.
Holst, Vogel & Richardson, Red Wing, for respondent.
This is an appeal by the defendant, Louis Fitschen, from a judgment in the district court for the plaintiff, Henry Albers, enforcing payment of a commission allegedly due under an agreement to sell real estate.
It appears from the record that plaintiff's efforts were the producing cause of the sale of a farm owned by defendant, and that the defendant has failed to pay a broker's commission pursuant to an agreement. The plaintiff failed to allege, as required by Minn.St. 82.16, subd. 2, 1 that he was a licensed real estate broker. No objection was made to the defect in the complaint at any time during the trial or before judgment. It was not claimed on the motion for a new trial nor is it asserted here that the plaintiff was not in fact a duly licensed real estate broker at the time the sale was made. That fact was brought out by defendant in his cross-examination of plaintiff.
It is the defendant's contention that the judgment must be vacated because the complaint does not allege a cause of action and that the court never acquired jurisdiction of the subject matter of the lawsuit. This asserted error requires an examination of the provisions of Minn.St. c. 82, which were enacted in the public interest to prevent abuses by unqualified or unreliable real estate brokers and salesmen. The provisions of c. 82 require that before one may engage in the business of selling real estate, he must qualify by making application for a license, submit to an examination to be conducted by the commissioner of securities, pay the required license fee, and conform to other conditions. The chapter provides that violation of its provisions shall constitute a gross misdemeanor. The provisions of § 82.16 are also penal in their nature in that a claim for real estate sale commissions may be defeated by failure to allege and prove in an action for payment that the person bringing the action was 'a duly licensed real estate broker or salesman at the time the alleged cause of action arose.'
There is not a great deal of authority bearing on the effect of the failure to allege a statutory condition precedent in a complaint for recovery of damages. 2 It is necessary to consider whether such a condition relates to the right to the commission as distinguished from the remedy to enforce payment of it. The case before us is to be distinguished from those actions brought against a municipality where the right to bring such actions is statutory in its origin and the necessity for filing a claim in substantial compliance with the statute is made a condition precedent to the commencement of the action. It is important to note in this case that the plaintiff's claim is not...
To continue reading
Request your trial
-
Carlton v. State, No. A10–2061.
...statutes of limitations, like any affirmative defense, may be “waived by a defendant who fails to assert it.” Albers v. Fitschen, 274 Minn. 375, 377, 143 N.W.2d 841, 843 (1966); see also Rehberger v. Project Plumbing Co., 295 Minn. 577, 578, 205 N.W.2d 126, 127 (1973) (per curiam). It is we......
-
Sanchez v. State, No. A09–2195.
...and equitable tolling apply to such statutes unless the Legislature expressly provides otherwise. See generally Albers v. Fitschen, 274 Minn. 375, 377, 143 N.W.2d 841, 843 (1966) (applying the doctrine of waiver to a statute of limitations); Knipple v. Lipke, 211 Minn. 238, 239, 300 N.W. 62......
-
Biesterfeld v. Asbestos Corp. of America
...the defense is considered waived. Rehberger v. Project Plumbing Co., Inc., 295 Minn. 577, 205 N.W.2d 126 (1973); Albers v. Fitschen, 274 Minn. 375, 143 N.W.2d 841 (1966). The defense may also be waived if the defendant presents an inconsistent theory at trial. City of St. Paul v. Bielenberg......
-
Ariola v. City of Stillwater
...Generally, a statute of limitations provides an affirmative defense that is waivable by defendants. Albers v. Fitschen , 274 Minn. 375, 377, 143 N.W.2d 841, 843 (1966). On the other hand, subject-matter jurisdiction cannot be waived. McCullough & Sons v. City of Vadnais Heights , 883 N.W.2d......